Sitting in judgment of a man sentenced to death is an awesome responsibility, one I undertook with great care during my 13 years on the Missouri Supreme Court. In the case of Brian Dorsey, I now believe this is the rare case where we got it wrong. I am so convinced of our error that I have asked Governor Parson to grant clemency to Mr. Dorsey. If Mr. Dorsey is executed on April 9, it will dishonor our system of justice.
There is no dispute that Mr. Dorsey killed the two victims in his case. But when my colleagues and I upheld his conviction and death sentence in 2009, we were unaware of how compromised his defense lawyers were. The most glaring problem, one that undoubtedly influenced everything, was that Mr. Dorsey’s lawyers were paid a flat fee by the state public defender system.
The courts rarely have any evidence of fee arrangements, and did not on direct appeal in this case. Flat fees are no longer used because the Missouri Public Defender system recognizes they create an inherent financial conflict of interest that compromises an attorney’s ability to provide adequate representation. Such arrangements are improper in capital cases, according to the American Bar Association, and are contrary to the Missouri Rules of Professional Conduct for attorneys.
The conflict is now readily apparent in Mr. Dorsey’s case. His lawyers did little to no investigation, including none of the basic preparations to determine whether he truly was eligible for the death penalty, before pleading him guilty – waiving trial – with the death penalty still on the table. Had counsel investigated the case and used an expert to evaluate their client, they would have discovered he had a defense to capital murder. With that in hand, they could have negotiated a plea deal for a penalty less than death or taken his case to trial. In either case, the likely result would have been a life without parole sentence, not death.
I am convinced that the system got it wrong in Brian Dorsey’s case because the available information plainly shows he is not “the worst of the worst.”
What we now know, and what Mr. Dorsey’s lawyers could have presented to the jury and the courts, is that at the time of the crime, he was experiencing a drug-induced psychosis. Mr. Dorsey had no history of violence, and had suffered severe depression for most of his life. He repeatedly sought treatment, turning to self-medication with alcohol and crack cocaine when antidepressants failed to alleviate his symptoms. None of these tragic circumstances, which were crucial to judging Mr. Dorsey’s actions fairly, were known to the courts.
The available evidence indicates that a jury may have found that Mr. Dorsey was not capable of forming the mental state required to commit first-degree murder. His lawyers, however, conceded his guilt without doing the work that would have revealed he had a viable defense. The evidence of Mr. Dorsey’s impaired mental state should have taken the death penalty off the table or, at the very least, led the jury to return a life sentence. In fact, several of Mr. Dorsey’s penalty phase jurors now say this evidence would have altered their verdict.
The legal system now recognizes that flat fee arrangements skew the outcomes in death penalty cases with dire results. But the flat fee and its impact on counsel’s representation was not evident when I sat in judgment of Mr. Dorsey in 2009. Mr. Dorsey has sought to raise this issue in post-conviction proceedings, but the court has rejected it on procedural grounds, most recently on March 20. No doubt the shoddy representation he received was a direct result of the conflict induced by the fee arrangement, and the outcome of the case flowed from counsel’s errors.
Unlike the jury and the courts, the governor has all of this information for him to consider. And when an injustice is plainly apparent, a procedural bar that cements that unfairness is a powerful reason why clemency exists and is warranted here.
Governor Parson knows something else the courts did not: Mr. Dorsey has an exceptional record of good conduct while incarcerated, earning so much trust and respect from correctional staff that he has served for many years as the prison barber. By all accounts, he is deeply remorseful for his crime and has not committed a single disciplinary infraction in 17 years in prison.
Given everything we now know to be true, I am convinced that Brian Dorsey’s death sentence is the result of a rare failing by the legal system itself. Executing him would be a miscarriage of justice. I hope Governor Parson will commute Mr. Dorsey’s death sentence
served as a Judge on the Missouri Supreme Court from 1998 to 2011, including serving as Chief Justice from 2005 to 2007. He has taught for many years at the St. Louis University School of Law, where he remains Professor Emeritus. Judge Wolff served as Dean of the law school from 2013 to 2017.
